Privacy & Cybersecurity Law Blog

On February 12, 2019, the Federal Trade Commission announced the completion of the first regulatory review of the Controlling the Assault of Non-Solicited Pornography and Marketing Act (“CAN-SPAM”) Rule (the “CAN-SPAM Rule” or “Rule”). By a vote of 5-0, the FTC voted to retain the CAN-SPAM rule with no modifications.

The CAN-SPAM Act regulates the transmission of commercial email messages whose primary purpose is advertising or promoting a product or service. The CAN-SPAM Rule, implementing the Act, imposes certain requirements for commercial email messages, such as the identification of the message as a commercial email or ad, the inclusion of a physical postal address of the sender, the usage of accurate subject lines and email headers and the provision of a notice of the opportunity to opt-out of future messages.

The FTC sought public comment on the CAN-SPAM Rule in June 2017 as part of its systematic review of current FTC regulations and guides. These periodic reviews seek input from stakeholders on the benefits and costs of specific FTC rules and guides along with information about their regulatory and economic impacts. The review of the CAN-SPAM Rule sought insight into:

• the continuing need for the Rule;
• the costs and benefits of the Rule;
• whether changes need to be made to the Rule in response to technological and economic developments;
• whether the FTC should expand or contract the definition of “transactional or relationship messages;”
• whether the time period for processing opt-out requests should be shortened to less than ten business days; and
• whether the FTC should modify the Rule to specify additional activities or practices that constitute aggravated violations.

Ninety two comments were submitted to the FTC, most of which favored retaining the Rule. After reviewing, the FTC determined that the CAN-SPAM Rule is beneficial to consumers, does not impose substantial economic burdens on organizations and that the Rule does not need to be modified.

Confirmation of the CAN-SPAM Rule will be published in the Federal Register shortly.